Underground by Suelette Dreyfus (books to get back into reading txt) 📖

years preparing the case against them. And now this barrister was seriously suggesting that one of the key players should get off virtually scot-free, with not so much as a conviction recorded against him? It was too much.

The judge retired to consider the sentence. When he returned, he was brief and to the point. No prison. No community service. The recording of 26 convictions. A $500 three-year good behaviour bond. Forfeiture of the now ancient Apple computer seized by police in the raid. And a reparation payment to the Australian National University of $2100.

Relief passed over Prime Suspect’s face, pink and sweaty from the tension. His friends and family smiled at each other.

Chettle then asked the judge to rule on what he called `the cooperation point’. He wanted the judge to say that Prime Suspect’s sentence was less than it would have been because the hacker had turned Crown witness. The DPP was shoring up its position with regard to its remaining target—Mendax.

Judge Lewis told the court that the cooperation in this case made no difference. At the back of the court, Mendax felt suddenly sad. It was good news for him, but somehow it felt like a hollow victory.

Prime Suspect has destroyed our friendship, he thought, and all for nothing.

Two months after Prime Suspect’s sentencing, Trax appeared in another County Court room to receive his sentence after pleading guilty to six counts of hacking and phreaking. Despite taking medication to keep his anxiety under control while in the city, he was still very nervous in the dock.

Since he faced the least number of charges of any of the IS hackers, Trax believed he had a shot at no recorded conviction. Whether or not his lawyer could successfully argue the case was another matter. Bumbling through papers he could never seem to organise, Trax’s lawyer rambled to the court, repeated the same points over and over again, jumping all over the place in his arguments. His voice was a half-whispered rasp—a fact which so annoyed the judge that he sternly instructed the lawyer to speak up.

Talking informally before court, Geoff Chettle had told Mendax that in his view there was no way Judge Mervyn Kimm would let Trax off with no recorded conviction. Judge Kimm was considered to be one tough nut to crack. If you were a bookmaker running bets on his court at a sentencing hearing, the good money would be on the prosecution’s side.

But on 20 September 1995, the judge showed he couldn’t be predicted quite so easily. Taking everything into account, including Prime Suspect’s sentence and Trax’s history of mental illness, he ordered no conviction be recorded against Trax. He also ordered a $500 three-year good behaviour bond.

In passing sentence, Judge Kimm said something startlingly insightful for a judge with little intimate knowledge of the hacker psyche. While sternly stating that he did not intend to make light of the gravity of the offences, he told the court that `the factors of specific deterrence and general deterrence have little importance in the determination of the sentence to be imposed’. It was perhaps the first time an Australian judge had recognised that deterrence had little relevance at the point of collision between hacking and mental illness.

Trax’s sentence was also a good outcome for Mendax, who on 29 August 1995 pleaded guilty to eight counts of computer crime, and not guilty to all the other charges. Almost a year later, on 9 May 1996, he pleaded guilty to an additional eleven charges, and not guilty to six. The prosecution dropped all the other charges.

Mendax wanted to fight those six outstanding charges, which involved ANU, RMIT, NorTel and Telecom, because he felt that the law was on his side in these instances. In fact, the law was fundamentally unclear when it came to those charges. So much so that the DPP and the defence agreed to take issues relating to those charges in a case stated to the Supreme Court of Victoria.

In a case stated, both sides ask the Supreme Court to make a ruling not on the court case itself, but on a point of law. The defence and the prosecution hammer out an agreed statement about the facts of the case and, in essence, ask the Supreme Court judges to use that statement as a sort of case study. The resulting ruling is meant to clarify the finer points of the law not only for the specific case, but for similar cases which appear in future.

Presenting a case stated to the Supreme Court is somewhat uncommon. It is unusual to find a court case where both sides can agree on enough of the facts, but Mendax’s hacking charges presented the perfect case and the questions which would be put to the Victorian Supreme Court in late 1996 were crucial for all future hacking cases in Australia. What did it mean `to obtain access’ to a computer? Did someone obtain access if he or she got in without using a password? What if he or she used the username `guest’ and the password `guest’?

Perhaps the most crucial question of all was this: does a person `obtain access’ to data stored in a computer if he or she has the ability to view the data, but does not in fact view or even attempt to view that data?

A good example of this applied to the aggravated versions of the offence of hacking: viewing commercial information. If, for example, Mendax logged into a NorTel computer, which contained commercially sensitive information, but he didn’t actually read any of those files, would he be guilty of `obtaining access’ or `obtaining access to commercial information’?

The chief judge of the County Court agreed to the case stated and sent it up to the full bench of the Supreme Court. The lawyers from both sides were pleased with the bench—Justices Frank Vincent, Kenneth Hayne and John Coldrey.

On 30 September 1996, Mendax arrived at the Supreme Court and found all the lawyers assembled at the court—all except for his barrister. Paul Galbally kept checking his watch as the prosecution lawyers began unpacking their mountains of paper—the fruit of months of preparation. Galbally paced the plush carpet of the Supreme Court anteroom. Still no barrister.

Mendax’s barrister had worked tirelessly, preparing for the case stated as if it was a million dollar case. Combing through legal precedents from not only Australia, the UK and the US, but from all the world’s Western-style democracies, he had attained a great understanding of the law in the area of computer crime. He had finally arrived at that nexus of understanding between law, philosophy and linguistics which many lesser lawyers spent their entire careers trying to reach.

But where was he? Galbally pulled out his mobile and checked in with his office for what seemed like the fifth time in as many minutes. The news he received was bad. He was told, through second-hand sources, that the barrister had collapsed in a state of nervous exhaustion. He wouldn’t be making it to court.

Galbally could feel his hairs turning grey.

When court opened, Galbally had to stand up and explain to three of the most senior judges in Australia why the defence would like a two-day adjournment. A consummate professional, Geoff Chettle supported the submission. Still, it was a difficult request. Time in the Supreme Court is a scarce and valuable thing. Fortunately, the adjournment was granted.

This gave Galbally exactly two days in which to find a barrister who was good, available and smart enough to assimilate a massive amount of technical information in a short time. He found Andrew Tinney.

Tinney worked around the clock and by Wednesday, 2 October, he was ready. Once again, all the lawyers, and the hacker, gathered at the court.

This time, however, it was the judges who threw a spanner into the works. They asked both sides to spend the first hour or so explaining exactly why the Supreme Court should hear the case stated at all. The lawyers looked at each other in surprise. What was this all about?

After hearing some brief arguments from both sides, the judges retired to consider their position. When they returned, Justice Hayne read a detailed judgment saying, in essence, that the judges refused to hear the case.

As the judge spoke, it became clear that the Supreme Court judges weren’t just refusing to hear this case stated; they were virtually refusing to hear any case stated in future. Not for computer crimes. Not for murder. Not for fraud. Not for anything. They were sending a message to the County Court judges: don’t send us a case stated except in exceptional circumstances.

Geoff Chettle slumped in his chair, his hands shielding his face. Paul Galbally looked stunned. Andrew Tinney looked as if he wanted to leap from his chair shouting, `I just killed myself for the past two days on this case! You have to hear it!’ Even Lesley Taylor, the quiet, unflappable and inscrutable DPP solicitor who had replaced Andrea Pavleka on the case, looked amazed.

The ruling had enormous implications. Judges from the lower courts would be loath to ever send cases to the Supreme Court for clarification on points of law again. Mendax had made legal history, but not in the way he had hoped.

Mendax’s case passed back down to the County Court.

He had considered taking his case to trial, but with recently announced budget cuts to Legal Aid, he knew there was little hope of receiving funding to fight the charges. The cuts were forcing the poor to plead guilty, leaving justice available only for the wealthy. Worse, he felt the weight of pleading guilty, not only as a sense of injustice in his own case, but for future hacking cases which would follow. Without clarity on the meaning of the law—which the judges had refused to provide—or a message from a jury in a landmark case, such as Wandii’s trial, Mendax believed that hackers could expect little justice from either the police or the courts in the future.

On 5 December 1996, Mendax pleaded guilty to the remaining six charges and was sentenced on all counts.

Court Two was quiet that day. Geoff Chettle, for the prosecution, wasn’t there. Instead, the quietly self-possessed Lesley Taylor handled the matter. Paul Galbally appeared for Mendax himself. Ken Day sat, expressionless, in the front row of the public benches. He looked a little weary. A few rows back, Mendax’s mother seemed nervous. Electron slipped silently into the back of the room and gave Mendax a discreet smile.

His hair pulled back into a loose ponytail, Mendax blinked and rolled his eyes several times as if brought from a dark space into the bright, white-walled courtroom.

Judge Ross, a ruddy-faced and jowly man of late middle age with bushy, grey eyebrows, seated himself in his chair. At first, he was reluctant to take on the case for sentencing. He thought it should be returned to one of the original judges—Judge Kimm or Judge Lewis. When he walked into court that morning, he had not read the other judges’ sentences.

Lesley Taylor summarised the punishments handed down to the other two hackers. The judge did not look altogether pleased. Finally, he announced he would deal with the case. `Two judges have had a crack at it, why not a third one? He might do it properly.’

Galbally was concerned. As the morning progressed, he became increasingly distressed; things were not going well. Judge Ross made clear that he personally favoured a custodial sentence, albeit a suspended one. The only thing protecting Mendax seemed to be the principle of parity in sentencing. Prime Suspect and Trax had committed similar crimes to Mendax, and therefore he had to be given a similar sentence.

Ross `registered some surprise’ at Judge Lewis’s disposition toward the sentencing of Prime Suspect. In